20 Mo. App. 412 | Mo. Ct. App. | 1886
The question in this case is, whether in
Under the act of the legislature in 1879, relating to the sale of intoxicating liquors by druggists, chapter 100, Revised Statutes, it was unlawful for a druggist to sell or give away any intoxicating liquors or medicated bitters, containing alcohol, in any quantity less than one gallon, except upon a prescription by a regularly registered physician.
In 1881 there- was enacted by the legislature an act, ■entitled “An act to regulate the sale .of medicines and poisons by druggists and pharmacists to.” Laws of 1881, p. 130. By judicial construction it has been held that, by the act of 1881, it was intended ‘£ to regulate the whole subject of the sale of intoxicating liquors by ■druggists and that “there is no room to doubt that the act of 1881 was intended as a substitute for that of 1879 and that the act of 1879 was wholly repealed by that of 1881. State v. Roller, 77 Mo. 120.
By the act of 1881 a duly registered druggist or pharmacist could sell intoxicating liquors for medicinal purposes without a prescription from a physician.. Id. In 1883 there was enacted by the legislature an act, -entitled “An act to amend section eight (8) of an act, ■entitled £ An act to regulate the sale of medicines and poisons by druggists and pharmacists,’ approved March 26, 1881, and to add three new sections to said act.” Laws of 1883, p. 89. By the act of 1883 it is provided that “no druggist or pharmacist shall, directly or indirectly, sell, give away, or otherwise dispose of, intoxicating liquors of any kind in any quantity less than one gallon, for any purpose,” except upon a written pie
• The act of 1883 was intended as a regulation of the sale of intoxicating liquors of all kinds by druggists and pharmacists, and by it was repealed all other acts in so far as they related to such regulation. As to such regulation the act of 1883 was intended to be complete and perfect in and of itself. Upon its adoption it alone, as to such regulation, was the law in force. State v. Roller, supra. The correctness of this proposition, generally sj)eakmg, is admitted by the defendant; but he insists that as to proprietary medicines, patent medicines, and medicines sold in the original package of the manufacturer, the act of 1883 has no application. To sustain this position the defendant relies upon sections seven and twelve of the act of 1881.- Section seven is as follows: “Every registered pharmacist, apothecary or owner of any drug store, shall be held' responsible for the quality of all drugs, chemicals and medicines he may sell or dispense, with the exception of those sold in original packages of the manufacturer, and also those known as “patent medicines,” and should he knowingly, intentionally and fraudulently adulterate, or cause to be adulterated, such drugs, chemicals or medical preparations, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, be liable to a penalty,” etc. Section twelve is as follows: “This act shall not apply to physicians putting up their own prescriptions, nor to the sale of proprietary medicines.”
The act of 1881, by reason of section eight and nine thereof, was held in State v. Roller, supra, to completely regulate the sale of intoxicating liquors by druggists, a subject not mentioned in the title of the act. We, of course, follow State v. Roller. We do not fail in doing so when we say that, with the exception of a proviso in section eight and of a small portion of section nine, the act of 1881 was wholly devoted to the subject mentioned in its title, to-wit, the regulation of “the sale of medicines and poisons by druggists and pharmacists.” Bear
By “proprietary medicines,” as used in section twelve, were intended such proprietary medicines as were not “alcoholic liquors or compounds.” Because, by section nine, it was provided, among other things, “Nor shall it be lawful for any licensed or registered druggist or pharmacist to retail, sell or give away any alcoholic liquors or compounds as a beverage.” It is, therefore, self evident that by “ proprietary medicines,” as used in section twelve, were not intended such proprietary medicines as were “alcoholic liquors or compounds.” By said term were intended those “proprietary medicines,” which were not “alcoholic liquors or compounds,” but were medicines, as distinguished from “alcoholic liquors and compounds;” and the “proprietary medicines” intended in section twelve were excepted from the, effect of the regulation by the act of “the sale of medicines and poisons by druggists and pharmacists.” By the act of 1881 any one, whether he was a druggist or not, might have sold “proprietary medicines,” which were not “alcoholic liquors or compounds,” but no one, not even a registered druggist or pharmacist, could have sold “proprietary medicines,” which were “alcoholic liquors or compounds,” as a beverage, without having the license of a dramshop keeper. By the term “ intoxicating liquors,” as used in the act of 1883, are intended intoxicating liquors in the meaning of the dramshop act, which, as we have said, include the “bitters” in proof. And we hold that the question in this case must be answered in the negative; and that, under the act of 1883, in force at the time of the sale by defendant, he
Judgment affirmed.
